In the case of Crebs et. al. v. Bass Pro Outdoor World et. al., plaintiff Amanda Crebs injured her knee when she tripped and fell over a decorative fence that protruded into the walkway. 2021 WL 2621431 (G.A. App. June 25, 2021).
Ms. Crebs and her family visited Bass Pro Shops in order for her son to take a picture with Santa. Ms. Crebs testified that that after conducting some shopping, she proceeded to get in line for Santa. Ms. Crebs parked her cart to the side of an aisle, picked her son out of the seat, and while carrying the child walked through the aisle to hand him to her husband. As she walked down the aisle, Ms. Crebs struck her leg on a portion of the decorative fencing that protruded about three inches into the aisle.
Ms. Crebs also testified that she was aware of the fence, nothing obstructed her view, and the lighting was sufficient. Ms. Crebs thought she could navigate the aisle with her child but knew her shopping cart was too large to fit. Ms. Crebs stated that she was paying attention but not looking down as she walked, so the protrusion was not obvious to her.
The Court of Appeals reasoned that a plaintiff is not required to maintain a constant lookout, but at the same time they are required to navigate floors, steps, and doorways every day. Defendants are not responsible for hazards that are open and obvious and could have been avoided by the use of ordinary care.
In this case, the Court of Appeals found that the fence was an open and obvious condition because it was visible, with sufficient lighting, and did not blend into its surroundings. The defendants did not have a duty to warn of the protrusion.
Notably, the Court of Appeals dismissed the plaintiff’s contention that because the protrusion was not obvious to Ms. Crebs there is a question of fact regarding whether it was obvious. The Court stated that this argument misconstrues the legal standard and ignores the evidence. Ultimately, the Court affirmed the trial court’s grant of summary judgment in favor the Defendants.
So often in depositions, we hear from the plaintiff that they did not see [insert hazard here]. This is despite their contentions they were paying attention, not distracted, and nothing obscured their vision from seeing the hazard. This portion of their testimony is frequently used in an attempt to create a question of fact that the plaintiff lacked knowledge of the hazard. This case confirms that a plaintiff cannot simply bury his/her head in the sand claiming ignorance of a hazard that was visible and able to be avoided.
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